Edmond city councilwoman signs Open Government Pledge

Edmond City Councilwoman Elizabeth Waner has pledged to "comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."

By signing FOI Oklahoma's Open Government Pledge, Waner also promised "to support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

Waner is the first Edmond municipal candidate to sign the pledge since FOI Oklahoma began offering the opportunity in spring 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.

Waner is seeking another four-year term as the Ward 2 council member. She faces Anne DeClouette in the general election on April 5.

Ward 2 encompasses east Edmond and is the city's largest ward geographically.

Instructions and a list of signers for the 2011 elections can be found on FOI Oklahoma’s website.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

OU Graduate Student Senate passes two unlisted bills in apparent violation of Open Meeting Act

OU's Graduate Student Senate apparently violated the state Open Meeting Act on Sunday when it approved two bills not listed on the agenda for that night's regular meeting, The Oklahoma Daily reported today.

The GSS unanimously approved five members to the spring election board and established polling sites for the election, the student newspaper reported.

The author of the two bills said she had submitted them to the appropriate officials the previous Monday. But, somehow, the bills weren't listed on the agenda.

Graduate Student Senate Chair Derrell Cox told the newspaper that GSS leaders decided to propose the bills despite the lack of public notice.

“It was our consensus in the executive meeting that [the legislation] would go forward,” Cox said. “I don’t know exactly who dropped the ball, but someone within the Senate dropped the ball in getting that posted.”

GSS leaders apparently felt pressured to approve the bills because of a requirement that the number and location of polling places be established at least three academic weeks prior to the elections on March 29 and 30.

The election is more than four weeks away, but the GSS won't have another regular meeting until March 6. Spring break is March 14-18.

However, calling a special meeting for this week would have given the public the required notice and avoided a violation of the Open Meeting Act.

Anyone convicted of violating the Open Meeting Act can by punished by up to one year in jail and a $500 fine. Also, any action taken in "willful violation" of the statute is "invalid." (OKLA. STAT. tit. 25, § 313)

In 2010, Boynton's three town trustees were charged with violating the Open Meeting Act after voting to appoint a town manager even though no such item was on the agenda for the special meeting.

The Open Meeting Act clearly requires that each agenda "identify all items of business to be transacted" by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))

Agendas should be worded in "plain language, directly stating the purpose of the meeting, in order to give the public actual notice," the Oklahoma Court of Civil Appeals has said. (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 8)

The court said any act or omission that "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting" would be a "willful" violation of the Open Meeting Act. That includes any agency action exceeding the scope of action defined by the notice.

Any construction of the statute that would allow a public body to consider an item not listed on its posted agenda – apart from "new business" – "totally vitiates the underlying mandate of the OMA to notify the public of the time and place of meetings of a public body, and the matters the public body intends to consider," the Court of Civil Appeals said in 2009. (Okmulgee Co. Rural Water Dist. No. 2 v. Beggs Pub. Works Auth., 2009 OK CIV APP 51)

The statute defines "new business" as "any matter not known about or which could not have been reasonably foreseen prior to the time of posting." (OKLA. STAT. tit. 25, § 311(A)(9))

At OU, the bills selecting members of the election board and establishing polling places were submitted to legislative leaders six days before the meeting. And those leaders should have known they were facing a deadline for the election.

The Open Meeting Act also permits emergency meetings. An emergency "is defined as a situation involving injury to persons or injury and damage to public or personal property or immediate financial loss when the time requirements for public notice of a special meeting would make such procedure impractical and increase the likelihood of injury or damage or immediate financial loss." (OKLA. STAT. tit. 25, § 304(5))

Establishing election board members and polling sites four weeks in advance of an election does not meet the statutory definition of an emergency meeting.

The Open Meeting Act is not a nuisance law to be ignored when it's inconvenient for elected officials, including college students who have taken responsibility for governing their classmates.

As our Court of Appeals said, the purpose of the Open Meeting Act "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems ... is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting." (1981 OK CIV APP 56, ¶ 8)

That holds true even on the University of Oklahoma campus.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

DA refuses to prosecute Lone Grove City Council for open meeting violation, says 'no collusion' between members; OSBI report closed to public

The Lone Grove City Council last May fired the city manager and hired a temporary replacement even though neither action was listed on the meeting agenda, The Lone Grove Ledger reported this week.

But the council will not face prosecution for the obvious violation of the state Open Meeting Act because Bryan County District Attorney Emily Redman says no collusion occurred among the councilors, the newspaper said.

However, as the newspaper points out, "collusion" is not required for a violation of the Open Meeting Act to be considered willful and, therefore, to be prosecuted.

Willfulness does not require that the councilors had acted in bad faith, maliciously or with an intent to violate the law during the vote.

Even a vote taken in "good faith" could be found to be a willful violation, the state Court of Civil Appeals said in 1981. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶¶ 24-25)

"If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act," the court explained. (Id. at ¶ 26) (emphasis added)

"While we discern no bad faith, malice, or wantonness, and while the officials may not have consciously broken the law, we are well-convinced that they knew or should have known the Act's requirements and blatantly or deliberately disregarded the law," the court concluded in that case. (Id. at ¶ 30)

The Oklahoma Supreme Court adopted the lower court's reasoning in 1984, saying, “Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act.” (Rogers v. Excise Bd. of Greer County, 1984 OK 95,¶ 14, 701 P.2d 754, 761)

A violation of the Open Meeting Act is a misdemeanor punishable by up to one year in the county jail and a fine of up to $500. (OKLA. STAT. tit. 25, § 314)

Taking actions not listed on an agenda are clear violations of the Open Meeting Act. And the Lone Grove City Council should know the law.

Under the Open Meeting Act, each agenda must "identify all items of business to be transacted" by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))

The Oklahoma Court of Civil Appeals has said agendas should be worded in "plain language, directly stating the purpose of the meeting, in order to give the public actual notice." (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 8)

The purpose of the statute "to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems ... is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting," the court said.

Any act or omission that "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting" would be a "willful" violation of the Open Meeting Act, the court said.

In that case, the court nullified the hiring of a superintendent because the school board's two posted agendas for the meeting had included only "Hiring principals. Discussion of hiring administrator. Interview a new administrator."

The "School Board’s actions were limited by its own notice to 'discussion' and 'interviews," the court said. "If, after interviewing [the candidate for superintendent], the School Board decided to hire him, this could only have been done by School Board calling a separate meeting with proper notice being given to the public of its intention to take that action." (Id. ¶ 13)

The Lone Grove City Council's meeting agenda listed merely a performance review of the city manager, the newspaper reported.

"There was no mention of any possible action, let alone what that action might be. There was absolutely no mention of the possibility of hiring an acting city manager," wrote Gary Hicks, the newspaper's publisher.

(He noted that the recording of the May 17 meeting was "lost," or "misplaced," or "there was a power surge," or "the recorder wasn't turned on." "Which scenario is chosen depends on which city official was talking at the moment," wrote Hicks.)

Despite the apparent Open Meeting Act violation, the council won't be prosecuted because Redman said she found no willful violation.

In her letter to Carter County District Attorney Craig Ladd, Redman said an OSBI investigation did not show collusion among the three city councilors who voted to fire the city manager.

(Ladd had the case assigned to Redman because one of his staff members is the sister of councilor Chris Young and because the city attorney in May was a former member of his staff, the newspaper reported.)

Without a prosecution, the public will never know what the Oklahoma State Bureau of Investigation found. OSBI officials have refused to release the investigative report to The Lone Grove Ledger.

Under Oklahoma law, OSBI officials noted, "All records relating to any investigation being conducted by the Bureau, including any records of laboratory services provided to law enforcement agencies ... shall be confidential and shall not be open to the public." (OKLA. STAT. tit. 74, § 150.5(D)(1))

"The fact that the investigation is closed does not alter the confidential nature of those records," the state Supreme Court said in 1993. (Hicks v. Thompson, 1993 OK 57)

So bottom line: Taxpayers footed the bill for an investigation into criminal conduct by elected officials, but they will never know what investigators found because a district attorney refuses to prosecute based on a dubious understanding of what constitutes a willful violation.

This situation exemplifies why prosecution of open government violations should be put in the hands of someone else, perhaps at the state level.

That will be a topic of discussion at FOI Oklahoma's fourth annual Sunshine Week Conference on March 12 in Oklahoma City. An internationally recognized expert on open government laws will offer his insight on creating a state agency that Oklahomans can go to for help when public officials wrongly withhold records or restrict access to open meetings.

More information on the conference and a registration form can be found on FOI Oklahoma's website.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Minco officials release audit labeled 'draft'

Minco officials late last week provided a copy of the independent audit of the town's finances to The Minco Millennium, said Kelly Rupp, the newspaper's owner/publisher.

A week earlier, town officials had refused the newspaper's request for the audit, saying it was a draft exempted under the state Open Records Act.

However, the Open Records Act says, "[A] public official may keep confidential his or her personal notes and personally created materials ... prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project." (OKLA. STAT. tit. 51, § 24A.9)

The exemption applies only prior to the official “taking action, including making a recommendation or issuing a report.” (Id.)

The audit clearly did not meet the criteria spelled out in the exemption. It was prepared by an outside auditing firm, not by a public official as personal notes "prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."

The audit was given to City Council members prior to a public meeting on Jan. 25, according to the newspaper. Council members discussed the 2009 audit and approved minor changes during that special meeting.

The copy received by the newspaper last Friday was labeled "draft."


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

OU provides student contact data to bank as part of monetary agreement even though state law bans selling it for purposes of marketing credit cards to students

University of Oklahoma officials have provided student contact information to the Bank of America in apparent contradiction of state law, the student newspaper recently reported.

The Oklahoma Daily's article and editorial focus on what the university has done with $8.8 million it has received from its credit card affinity agreements with the Bank of America and Mid-First Bank.

According to the newspaper, OU received money in exchange for releasing student contact information to the Bank of America. "OU receives commission and royalties on all purchases made on the cards and when the bank acquires new members," the newspaper reported.

"In return for these contact lists and other forms of support and assistance, the university receives $1 for each new student credit-card account opened, $1 for each annual fee paid on student credit-card accounts, 0.40 percent on all retail transaction volume for all student credit-card accounts and other royalties," the newspaper said.

As The OU Daily points out, state law bars universities from selling "student data to any creditor for purposes of marketing consumer credit to students." The statute defines creditors as any company "who, in the ordinary course of business, regularly extends consumer credit." (OKLA. STAT. tit. 70,§ 3245)

The newspaper said OU officials agreed with Bank of America to provide updated contact lists containing the last-known mailing address and phone numbers of alumni, donors, faculty, staff and "other potential participants." These other potential participants have always included students, university spokesman Chris Shilling told the newspaper.

Shilling said the student information was NOT being sold because OU is required by law to provide student-directory information to anyone who makes an open records request.

I wish universities would be this creative in finding a way to provide public records when doing so wouldn't garner them millions of dollars.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Glenpool, Geary municipal candidates pledge support for open government

Candidates for Geary mayor and the Glenpool City Council have signed FOI Oklahoma's Open Government Pledge.

By doing so, Nathan Willsey and Tommy Carner each promised, "I and the public bodies that I am elected to govern will comply with not only the letter but also the spirit of Oklahoma's Open Meeting and Open Records laws."

Willsey is running for Geary mayor. Carner is seeking the Ward 4 seat on the Glenpool City Council.

Municipal primary elections will be March 1.

By signing the pledge, Carner and Willsey also promised "to support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

Instructions and a list of signers for the 2011 elections can be found on FOI Oklahoma’s website.

FOI Oklahoma began the Open Government Pledge in spring 2008 as part of a national effort to spur public commitments to government transparency from candidates for president down to city council contests.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

International expert on government transparency laws will deliver keynote for FOI Oklahoma’s fourth annual Sunshine Week Conference on March 12 in Oklahoma City

An internationally recognized expert on open government laws will offer his insight on creating a state agency that Oklahomans can go to for help when public officials wrongly withhold records or restrict access to open meetings.

As executive director for the nation’s first-such state agency, Robert J. "Bob" Freeman is responsible for providing advice about New York's open records and meeting laws to the public, state and local governments, and the media.

Freeman's keynote address to FOI Oklahoma’s fourth annual Sunshine Week Conference on March 12 in Oklahoma City also will offer advice on making Oklahoma’s open government laws work for the public.

This year’s conference theme is "Putting Muscle Behind Oklahoma’s FOI Laws." The conference, set at The Oklahoman Tower, 9000 N. Broadway, also will feature:

• State representatives discussing bills requiring the Legislature to comply with Oklahoma’s Open Meeting and Records laws;


• A panel of local heroes who have gone to court seeking information under the Open Records Act and challenging the conduct of public bodies under the Open Meeting Act; and


• A workshop training the public to use the Open Records Act to request records and to spot the most-likely violations of the Open Meeting Act.

The luncheon will include a tribute to former Oklahoma Supreme Court Justice Marian Opala. Recipients of FOI Oklahoma Inc.'s annual Marian Opala First Amendment Award and three freedom-of-information awards will be recognized, as will the winners of its first FOI essay contest for college students.

More information on the conference and a registration form can be found at www.foioklahoma.org. Please register soon because seating is limited.

The daylong conference kicks off with Freeman’s keynote speech at 9 a.m.

Freeman was legal counsel for the New York State Committee on Open Government at its inception in 1974 and became its executive director in 1976. He also is co-author of New York's Freedom of Information and Personal Privacy Protection laws.

"Bob was the first official in the U.S. to conceive of, and implement, an office that is now replicated in a number of states, provinces and countries," an FOI advocate said last year when Freeman was inducted into the national Open Government Hall of Fame.

"Bob was also one of the original proponents of the concept that freedom of information is not merely a legal mandate, but an ethical responsibility for all government officials."

The committee, a division of the New York Secretary of State's Office, is composed of five members from government and six from the public, including at last two representing the news media.

Freeman and the committee are responsible for overseeing the implementation of the state's open government laws and administering the Personal Privacy Protection Law. Freeman has written about 17,000 advisory opinions on behalf of the committee at the request of government officials, the public and the news media. He also has provided several thousand oral opinions by telephone.

Courts typically agree with his advisory opinions, Freeman told the FOI Oklahoma Blog recently.

A financial analysis showed that the committee costs each New York taxpayer less than one cent per year, Freeman said. He and his staff conducted about 90 training programs for the public, government officials and the media last year.

Freeman also has offered advice and consultation on open government laws and concepts throughout the United States and in Canada, the Far East, Eastern Europe and Latin America. He helped with the development of Japan's first access to records law.

"Robert Freeman is one of the people everyone in the Freedom of Information movement has turned to for advice and legal know-how," said Charles Davis, former executive director of the National Freedom of Information Coalition. "He stands as one of the great voices of FOI and has talked to groups, large and small, about the topic more often than anyone else on the planet."


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications